The curious case of Bernard Gaynor: the High Court refuses to hear freedom of speech appeal. Too much law, too little reason.

This is not the high court of the Mabo decision, where, while obvious to nearly all australians, finally in law the arrant nonsense of terius nullius was finally laid to rest.

This is a carefully hand-picked and nurtured politically conservative high court, where protecting the rights and freedoms of the australian people is not just a low priority, it has no standing at all.

Last month, the high court refused to hear an appeal brought by conservative activist Bernard Gaynor. The reservist had his commission with the army terminated in 2013 for provocative public comments, and has since been engaged in a legal battle with the Australian Defence Force. Gaynor won in the Federal Court, lost in the Full Federal Court, and with the High Court declining special leave to appeal, the one-time Senate candidate’s litigious crusade is now over.

I find Gaynor’s political views deeply offensive. He is homophobic, and Islamphobic, to name just two, and I would argue against his opinions at every opportunity. But, he has an inalienable right to hold and express those views.

In March, the full court of the Federal Court delivered its judgment in Chief of the Defence Force v Gaynor. In late 2015, Gaynor successfully argued before the Federal Court that his termination infringed the freedom of political communication implied in the constitution. Last month, though, justices Nye Perram, Debbie Mortimer and Jacqueline Gleeson accepted an appeal by the Australian Defence Force and upheld the validity of Gaynor’s termination.

The full court’s decision predominantly rested on two related grounds. First, the bench found that primary judge Robert Buchanan had erred in conceptualising the constitutional protection as a “right” afforded to Gaynor. They said: “The proposition that the implied freedom does not involve, nor does it recognise or confer, any personal rights on individuals in the same way the first amendment to the US constitution does, is an observation which has been made repeatedly in almost every case dealing [with] the freedom of political communication.” While Buchanan had initially acknowledged this in the judgment, his subsequent application of the law suffered from a “rights-based analysis” defect. (The judge had erred in interpreting the ‘freedom of political communication’ as an individual ‘right’, rather than a constraint on the exercise of legislative power. Seriously??! )

Second, the full court disagreed with the subject of Buchanan’s analysis. The first instance decision had assessed the constitutional validity of the decision to terminate Gaynor’s commission, a discretionary power granted under federal regulations. According to Perram, Mortimer and Gleeson, the correct approach was instead to consider whether the authorising regulation itself was invalid for disproportionately burdening the implied freedom. While they accepted that the regulation “was capable of making an officer pay a price for [their] communications”, it was nevertheless “suitable, necessary, and adequate in balance with respect to any burden it imposes” on the freedom of political communication. Gaynor’s termination was therefore valid. (The Court of Appeal found that in some circumstances the restriction of the freedom of political communication is justified and held that the ’…circumstances of Gaynor’s comments’ and his refusal to accept and adhere to orders made by the ADF, were extreme. Therefore, any harm to his freedom of political communication was outweighed by the need to reserve the power of the ADF to terminate individuals whose conduct and behaviour placed them in a category where their continued presence in the ADF was regarded as sufficiently serious. Seriously?? At no time did he purport to represent the ADF. He was speaking as a private citizen. But what then for the racist and homophobic police officer, speaking as a private citizen?)

Gaynor perhaps represents an unfortunate test case for the ventilation of important free speech issues. Many would no doubt strongly disagree with the views he stridently espoused. His “antipathy to overt tolerance or support of homosexuality” and “statements critical of adherents of Islam”, as Buchanan described, could be labelled homophobic and Islamophobic. Some might even go so far as to say the implied constitutional protection for political communication simply does not, or should not, extend to such comments. Yet the high court has previously stated: “History … teaches that abuse and invective are an inevitable part of political discourse.”

Gaynor’s views were expressed in his own time, in his capacity as a private citizen and not while he was on duty or in uniform. While his comments did draw a connection with the ADF, he was not purporting to speak on its behalf. There is something deeply unsettling about the government seeking to regulate an individual’s views, whether public servant, army reservist or ordinary citizen.

It is on this point that the final substantive paragraph of Buchanan’s initial judgment resonates: “the applicant’s commission was terminated because of the publication of his private views about political matters. The fact that those publications were at variance with [ADF] or government policy, or were in terms of which some may strongly disapprove, or were critical of [ADF] policies or instructions, does not appear to me to be sufficiently connected with any legitimate legislative aim to displace the freedom of political communication implied in the constitution.”

To some, this reasoning is compelling and the end result just. Indeed, the court’s disapproval of Gaynor’s comments was thinly veiled. But if he had instead criticised the government’s defence policy, would the outcome have been different? How do we rationally distinguish between political statements that deserve constitutional protection and those that do not? If Gaynor had instead said that the War in Iraq was based on a lie and Australia should not have been involved, and the ADF objected in similar terms to the existing case, how could the high court do anything but support the ADF and rule against Gaynor — that is entirely consistent with the court argument, and the court reasoning can be applied specifically and equally to both sets of Gaynor comments. So now we have judicially-sanctioned political censorship,

The High Court’s refusal to even consider an appeal from Gaynor should be deeply troubling, regardless of your political persuasion. The Full Federal Court finding that the ADF did not impermissibly encroach on Gaynor’s constitutionally protected free speech has broader ramifications, for public servants, for those in receipt of a government pension or benefit, or a business with contracts with the government, and indeed for the ordinary citizen. They may be well-worn to the point of cliché, but the words of English writer Evelyn Beatrice Hall are apt. “I disapprove of what you say,” she mused in 1906, “but I will defend to the death your right to say it.” Her and I might, but our courts will not.

A question ignored is not a question answered, and by not hearing the appeal, the high court is abrogating its responsibilities. Do australian citizens have certain freedoms, and if so, under what circumstances can those freedoms be over-ridden, if at all?? A question ignored is not a question answered.